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A Retrospective View of Critical Legal Studies and Radical Criminology Albert P Journal of Criminal Law and Criminology Volume 84 Article 3 Issue 3 Fall Fall 1993 Radicalism in Law and Criminology: A Retrospective View of Critical Legal Studies and Radical Criminology Albert P. Cardarelli Stephen C. Hicks Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Albert P. Cardarelli, Stephen C. Hicks, Radicalism in Law and Criminology: A Retrospective View of Critical Legal Studies and Radical Criminology, 84 J. Crim. L. & Criminology 502 (Fall 1993) This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 009 1-4169/93/8403-0502 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 84, No. 3 Copyright © 1993 by Northwestern University, School of Law Printedin U.S.A. CRIMINOLOGY RADICALISM IN LAW AND CRIMINOLOGY: A RETROSPECTIVE VIEW OF CRITICAL LEGAL STUDIES AND RADICAL CRIMINOLOGY ALBERT P. CARDARELLI* & STEPHEN C. HICKS** I. INTRODUCTION: HISTORY AS A PRELUDE As the end of the century approaches, there is a growing senti- ment that we may be witnessing the end of the "Left" as a major ideological force in American society.' The reasons for the pur- ported demise, especially in American politics, are not always in agreement, even among leftist scholars themselves. 2 One explana- tion posits that the fall from power began with the ascendancy of the "Right" in national politics with the election of Ronald Reagan, and was accelerated by the collapse of communist governments through- * Senior Fellow, John W. McCormack Institute of Public Affairs, University of Mas- sachusetts, Boston. Ph.D., Sociology, University of Pennsylvania; J.D., Suffolk Univer- sity Law School. ** Professor of Law, Suffolk University Law School. M.A., LL.B., Downing College, Cambridge England; LL.M., University of Virginia. I See generally JOHN P. DIGGINS, THE RISE AND FALL OF THE AMERICAN LEFT (1992); JEFFREY GOLDFARB, THE CYNICAL SOCIETY: THE CULTURE OF POLITICS AND THE POLITICS OF CULTURE IN AMERICAN LIFE 82-102 (1992); Maurice Isserman & Michael Kazin, The Failure and Success of the New Radicalism, in THE RISE AND FALL OF THE NEW DEL ORDER, 1930-1980, at 212 (Steve Fraser & Gary Gerstle eds., 1989); CHRISTOPHER LASCH, THE TRUE AND ONLY HEAVEN: PROGRESS AND ITS CRITICS (1991); WINI BREINES, COMMUNITY AND ORGANIZATION IN THE NEW LEFT, 1962-1968: THE GREAT REFUSAL (1989). For a retrospective analysis of the New Left from a former member of the movement, see generally BREINES, supra. 2 See Carolyn J. Mooney, Down but not Out, Socialist Scholars Gather to Redefine Political and Academic Assumptions in Post-Soviet Era, 38 CHRON. HIGHER EDUC., May 6, 1992, at A19; Michael Ansara & S.M. Miller, Opening Up Progressive Thought, SOC. POL'Y, Summer 1986, at 3-10 (analyzing the challenges facing the left in American society). 502 1993] RADICALISM IN LA WAND CRIMINOLOGY 503 out Eastern Europe and the Soviet Union.3 Whether this explana- tion is adequate remains open to debate. 4 There is, however, ready acknowledgment that important political and cultural shifts con- tinue, and that these shifts need to be examined within the historical context of cultural change as it relates to the dominant ideas and beliefs around which political philosophies cohere.5 In this vein, Christopher Lasch early argued that modern radicalism can best be understood as a phase of the social history of intellectuals whose prime function is to be critics of society.6 From this perspective, the content of radicalism will always be contingent upon the historical circumstances of the period in which it arises; its intensity likely to wax and wane over time; and its meaning likely to differ at the time of its ascendancy from its historical closure or demise. This prem- ise-that radicalism is itself historical both in terms of its meaning and its political locus-is the theme upon which the present analysis is structured, and from which we draw our conclusions. 7 To explore this premise, our analysis focuses on two self-proclaimed radical al- ternatives to established schools of thought in Law and Criminol- ogy. These movements, "Radical Criminology" and "Critical 3 Mooney, supra note 2, at A19; BREINES, supra note 1, at 150-52. 4 See GOLDFARB, supra note 1, at 103-17. 5 See LASCH, supra note 1, at 21. 6 CHRISTOPHER LASCH, THE NEW RADICALISM IN AMERICA: 1889-1963: THE INTEL- LECTrUAL AS A SOCIAL TYPE ix (1965). For an analysis of radicalism and the role of the intellectual, see Seymour Martin Lipset & Richard B. Dobson, The Intellectual as Critic and Rebel: With Special Reference to the United States and the Soviet Union, DAEDALUS, Summer 1972, at 137; IRVING L. HoRowrrz, RADICALISM AND THE REVOLT AGAINST REASON: THE SOCIAL THEORIES OF GEORGE SOREL (1968); and RICHARD H. PELLS, RADICAL VISIONS AND THE AMERICAN DREAMS: CULTURE AND SOCIAL THOUGHT IN THE DEPRESSION YEARS 151-93 (1973). 7 Radicalism can, of course, be associated with ideological movements on both the "left" and the "right" of the political and cultural spectrum. For example, WILLIAM B. HIXSON, JR., SEARCH FOR THE AMERICAN RIGHT WING: AN ANALYSIS OF THE SOCIAL SCI- ENCE RECORD, 1955-1987 (1992), synthesizes scholarly research on the contemporary American right wing. For a recent and powerful analysis of the American Revolution as a radical event, see generally GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION (1992). 8 Over the last few decades, Radical Criminology has been variously referred to as "Marxist Criminology," "Conflict Criminology" and "Critical Criminology," creating confusion among both sympathizers and critics of Radical Criminology. Radical crimi- nologists readily acknowledge an explicit debt to Marx and the critical theories of the Frankfurt School. See, e.g., ThomasJ. Bernard, The Distinction Between Conflict and Radical Criminology, 72 J. CRIM. L. & CRIMINOLOGY 362 (1981); W. Byron Groves & Robert J. Sampson, CriticalTheory and Criminology, 33 Soc. PROBs. 258 (1986); Stuart Henry & Dra- gan Milovanovic, Constitutive Criminology: The Maturation of Critical Theory, 29 CRIMINOL- OGY 293 (1991); Jim Thomas & Aogan O'Maolchata, Reassessing the CriticalMetaphor: An Optimistic Revisionist View, 6 JUST. Q. 143 (1989). In 1990, Critical Criminology, repre- senting a more "leftist" oriented perspective, became a subsection of the American Sod- 504 CARDARELLI & HICKS [Vol. 84 Legal Studies" (CLS), 9 rose to ascendancy during the 1960s and 1970s; each raised major intellectual challenges to the accepted bodies of knowledge in their respective disciplines. A. RADICAL MOVEMENTS AS HISTORICAL EVENTS This article is not intended to develop a detailed history and critique of Radical Criminology and CLS; such analyses have already been established.10 Rather than focus on the details or agendas of each movement, we shall focus on them as movements in the con- text of the last thirty years-a period of history that now seems fate- ful for the Left generally, while calling into question its continued viability in the future.11 Thus, our analysis is a description and com- mentary on a stage in the recent history of ideas, particularly radical ideas within law and criminology, both of which were especially vul- nerable to ideological controversy.1 2 Further, our analysis suggests that the stage we are seeking to delimit and account for, both internally as a period of radical mo- ment, and externally as a period of conservative political reaction, is giving way as new forces and ideas appear on the horizon.13 Just as CLS, in particular, made the argument that it is the awareness of historical contingency that undermines the automatic acceptance of the status quo, so too must that insight now be applied to both movements. 14 Their power and critical acclaim are equally not im- mutable. As feminists, environmentalists, minorities and fundamen- ety of Criminology, and itself represents the historical maturation of radical/critical criminology. 9 See Mark Tushnet, Critical Legal Studies: A Political History, 100 YALE LJ. 1515 (1991), for an overview of the development of CLS by a major figure in the movement. 10 For an overview of Radical Criminology, see MICHAEL J. LYNCH & W. BYRON GROVES, A PRIMER IN RADICAL CRIMINOLOGY (1986); RADICAL CRIMINOLOGY: THE COM- ING CRISIS (James A. Inciardi ed., 1980); Robert M. Bohm, Radical Criminology: An Expli- cation, 19 CRIMINOLOGY 565 (1982). For a general understanding of the Critical Legal Studies movement, see ROBERTO M. UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (19 8 6 );J. Stuart Russell, The CriticalLegal Studies Challenge to ContemporaryMainstream Legal Philosophy, 18 OrrOWA L. REV. 1 (1986); David M. Trubek, Where the Action is: Critical Legal Studies and Empiricism, 36 STAN. L. REV. 575 (1984). See generally CRITICAL LEGAL STUDIES (Peter Fitzpatrick & Alan Hunt eds., 1987); ANDREW ALTMAN, CRITICAL LEGAL STUDIES: A LIBERAL CRITIQUE (1990); Mark Tushnet, CriticalLegal Studies: An Introduction to its Origins and Underpinnings, 36 J. LEGAL EDUC. 505 (1986); Tushnet, supra note 9, at 1515. 11 See GOLDFARB, supra note 1, at 82-102; DIGGINS, supra note 1, at 342-83. 12 See LASCH, supra note 6, at ix; DIGGINS, supra note 1, at 39-44. 13 See GOLDFARB, supra note 1, at 170. See generally ALBERT BORGMANN, CROSSING THE POSTMODERN DIVIDE (1992); DAVID GROSS, THE PAST IN RUINS: TRADITION AND THE CRI- TIQUE OF MODERNITY (1992). 14 See Elizabeth Mensch, The History of Mainstream Legal Thought, in THE POLITICS OF LAw: A PROGRESSIVE CRITIQUE 18 (David Kairys ed., 1982). 1993] RADICALISM IN LAW AND CRIMINOLOGY 505 talists seek to control the cultural agenda, one must ask where Radical Criminology and CLS lie in the landscape of the Left to- day.
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